Mischief rule

The mischief rule is one of three rules of statutory interpretation traditionally applied by English courts. The other two are the "plain meaning rule" (also known as the "literal rule") and the "golden rule".

The main aim of the rule is to determine the "mischief and defect" that the statute in question has set out to remedy, and what ruling would effectively implement this remedy. In applying the mischief rule, the court is essentially asking what part of the law did the law not cover, but was meant to be rectified by Parliament in passing the bill.

The rule was first laid out in a 16th-century ruling of the Exchequer Court.

Conway v Rimmer is a rule of construction that judges can apply in statutory interpretation in order to discover Parliament's intention. In applying the rule, the court is essentially asking the question: what was the "mischief" that the previous law did not cover, which Parliament was seeking to remedy when it passed the law now being reviewed by the court?

The Mischief Rule is of narrower application than the golden rule or the plain meaning rule, in that it can only be used to interpret a statute and, strictly speaking, only when the statute was passed to remedy a defect in the common law.

Legislative intent is determined by examining secondary sources, such as committee reports, treatises, law review articles and corresponding statutes.

The application of this rule gives the judge more discretion than the literal and the golden rule as it allows him to effectively decide on Parliament's intent. It can be argued that this undermines Parliament's supremacy and is undemocratic as it takes law-making decisions away from the legislature.

The way in which the mischief rule can produce more sensible outcomes than those that would result if the literal rule were applied is illustrated by the ruling in Smith v Hughes [1960] 2 All E.R. 859. Under the Street Offences Act 1959, it was a crime for prostitutes to "loiter or solicit in the street for the purposes of prostitution". The defendants were calling to men in the street from balconies and tapping on windows. They claimed they were not guilty as they were not in the "street". The judge applied the mischief rule to come to the conclusion that they were guilty as the intention of the Act was to cover the mischief of harassment from prostitutes.

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